Lincoln v New Zealand Law Society

[2019] NZHC 74

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2018-409-000462

[2019] NZHC 74

BETWEEN

RICHARD LINCOLN

Applicant

AND

NEW ZEALAND LAW SOCIETY

Respondent

Hearing:

On the papers

Appearances:

Applicant in person

P N Collins for Respondent

Judgment:

5 February 2019

JUDGMENT OF DUNNINGHAM J

[1]                  In a judgment issued on 23 November 2018 I declined the applicant’s application to be admitted as a barrister and solicitor of this Court. I reserved the issue of costs.

[2]                  The New Zealand Law Society seeks costs calculated on a category 2B basis, accepting the proceeding was “of average complexity and requiring counsel of skill and experience considered average in the High Court” in accordance with r 14.3(1). Those costs amount to $13,937.50 with disbursements of $110.00.

[3]The applicant opposes an award of costs, saying that:

(a)the proceeding concerned a matter of public interest and he acted reasonably in the conduct of the proceeding;

LINCOLN v NEW ZEALAND LAW SOCIETY [2019] NZHC 74 [5 February 2019]

(b)an award of costs would be a “compelling disincentive” and cause unfair and unjustified hardship to him.

[4]                  In advancing these matters in his submissions he notes that the Court of Appeal in Re Lundon held that applications for admission involve a matter of public interest.1 He also submits that he acted reasonably in commencing and continuing the proceeding and, by reference to the outcome in other cases, in particular to Gibbs v New Zealand Law Society, his case could not be considered a hopeless case.2

[5]                  The applicant states that he currently has “no other useful occupational training”, as his training, experience and knowledge in information technology is now dated by almost a decade and is largely redundant. He says he has placed his life savings into studying and obtaining a law degree and completing professionals, and that substantial effort, time and money is now wasted. He also says that publication of the judgment declining his application has adversely affected his options for future employment.

[6]                  In the circumstances, he says that an award of costs would be “harshly punitive and a strong disincentive against him ever applying for admission again at a later date when he can satisfy the Court that he is a fit and proper person to practice law”.

Relevant principles

[7]Costs are in the discretion of the Court.3

[8]                  While costs generally follow the event, rule 14.7 provides that the Court may make a reduced award, or refuse to make an order for costs, in certain circumstances. These include where:

(a)The proceeding concerned a matter of public interest, and the party opposing costs acted reasonably in the conduct of the proceeding; or4

1      Re Lundon [1926] NZLR 656 (CA) at 658.

2      Gibbs v New Zealand Law Society [2014] NZHC 1141.

3      High Courts Rules, r 14.1(1).

4      Rule 14.7(e).

(b)Some other reason exists which justifies the Court refusing costs or reducing costs despite the principle that the determination of costs should be predictable and expeditious.5

Analysis

[9] While costs normally follow the event, I accept that there are factors in this case which warrant the discretion found in r 14.7 being exercised. First, while these are not strictly public interest proceedings in the sense envisaged by r 14.7(e), I accept that the public interest is engaged in such applications. The statutory requirements for admission provided for in Part 3 of the Lawyers and Conveyancers Act 2006 (the Act) are there, both to maintain public confidence in the legal profession, and to protect the public by ensuring that the standards of the legal profession are rigidly adhered to.6 While an application for admission clearly has a private interest element to it, the requirements of the Act relating to admission are designed to serve the broader purposes of the Act and not there to promote the interests of the individual applicants, nor to punish or otherwise penalise them.

[10]              While this is not a case, as in Brown v The New Zealand Law Society, where Mr Lincoln had no alternative to make application to the Court (as Mr Lincoln had not reached the point where the Society had declined to issue him with a certificate of good character), there are, in my view, a number of parallels with the case in Brown.7

[11]              I accept the application was advanced on a reasonable basis, and it was supported by a practicing barrister,  Mr  Starling,  who  was  prepared  to  employ  Mr Lincoln. It was also supported by a retired barrister, Mr David Wood, of Timaru.

[12]              I also accept that the application was responsibly argued by Mr Lincoln. He engaged counsel to handle the cross-examination of witnesses, and advanced his case in a logical and measured way.

5      Rule 14.7(g).

6 Lawyers and Conveyancers Act 2006, s 3(1).

7      Brown v The New Zealand Law Society [2018] NZHC 1692.

[13]              While I do not have evidence to support Mr Lincoln’s submission that he is not in a strong position financially, I accept that is likely to be the case. I also acknowledge that he has invested considerable time and money into obtaining the relevant legal qualification and he is not in a position to use it. However, I consider he does have other employment options, albeit in less skilled occupations. Although financial hardship is not determinative of whether a costs award should be made, it can be a relevant factor, and I give some weight to it in this case.8

[14]              I also accept that there are a number of cases involving an application for admission where the Courts have accepted that the public interest is engaged and have declined to award costs, regardless of the outcome, where the party opposing the costs award has acted reasonably in the conduct of the proceedings.9

[15]              I do not, however, put much weight on the impact that an award of costs would have on the applicant applying again at a later date.10 At 56 years old, I see less prospect of Mr Lincoln being able to demonstrate, with the passage of time, that he has matured and put behind him the behaviour which precluded him from meeting the fit and proper person test on this occasion, than would be the case with a younger candidate.

[16] Finally, I take account of the fact that the respondent was obliged to oppose the application in this case by virtue of virtue of Clause 6 of the Lawyers and Conveyancers Act (Lawyers: Admission) Rules 2008. It is undertaking a public function in that role and should not have to bear the full cost of that in every case, regardless of the outcome.

8      Craig v Keith [2017] NZHC 2664 at [23].

9      See, for example, Sun v New Zealand Law Society [2014] NZHC 1318; Samuel v New Zealand Law Society [2014] NZHC 3026 at [43]; Pou v Waikato/Bay of Plenty District Law Society     HC Rotorua CIV-2004-463-0511, 10 May 2005 at [47] and [49]; Ali v New Zealand Law Society [2014] NZHC 1111 at [42]; Re Donnelly HC Auckland CIV-2010-404-5943, 2 September 2011 at [66]; and Brown v New Zealand Law Society [2018] NZHC 1263, [2018] NZAR 1192 at [10].

10     As was the case in Roble Mohamed Ali v New Zealand Law Society [2014] NZHC 1111, and in

Re Lundon [1926] NZLR 656 (CA) at 658.

[17]              Balancing these matters, and in the exercise of my discretion, I make a reduced order for costs in favour of the respondent of $5,000, plus disbursements of $110.00.

Solicitors:

P N Collins, Barrister, Auckland Copy to: Mr Lincoln